There are only two assignments of error; one relates to the refusal to sustain motion to nonsuit and the other to a part of the charge. As we understand the law applicable to this ease, the motion was properly denied.
The material facts as testified to by plaintiff and his witness are practically uncontradicted. Plaintiff was a passenger on defendant’s train from Goldsboro to Warsaw, 16 December, 1914. It was nearly dark and the lamps were lighted. Plaintiff was seated in the smoking apartment of the rear passеnger coach. A short while before the train reached Warsaw the plaintiff, desiring a drink of water, arose from his seat, approached the water tank in the rear of the coach, and stepped on a loose bolt which was on the floor of the coach, was thrown down and seriously injured. This bolt was large and of a kind used in bolting the rails of the track together. Such bolts are frequently carried by railroad trackmen with them on defendant’s engines and trains.
Plaintiff testified: “When I stepped on the bolt it rolled and twisted under mе, shot my leg or left foot from under me, and it slid under my right foot and threw me to the floor, not allowing my body to fall over as it would ordinarily if out in the open. This rear seat was so close to me I fell on the side of that and my hip slid out like that. When I pulled up by the bench and attempted to make a step I found I had lost the use of this left hip, hurting me very much at the time. I leaned over and caught the seat opposite across the aisle and sat down on this seat, which had no arm to it. This bolt rolled out against the rear door of the coach when I stepped on it, and the motion of the train rolled it back in the aisle — down the aisle, like.”
The defendant offered evidence tending to rebut the allegation that the injury was caused by its negligence. Its evidence tended to prove that the cars were properly lighted; that the bolt must have been suddenly rolled in the aisle, and that there was no time or opportunity afforded defendant to discover and remove it, and that the plaintiff’s injury was the result of an accident that reasonable care could not hаve prevented. It will be seen from the response to the second issue that the plaintiff’s conduct in no way contributed to his injury.
*392 The defendant’s counsel earnestly contends tbаt there is no evidence of negligence to be submitted to the jury; that there is no evidence “as to the length of time the bolt had been on the floor, who put it there, or that it was even discovered by or brought to the attention of any members of the train crew.”
A loose track bolt, as large as the one in evidence, lying on the aisle floor of a passenger car, is unquestionably a danger and menace to the passengers.
The defendant’s witness Page testified: “I would have picked the bolt up quickly if I had seen it. We are supposed to pick up those things.” Its witness Whitehead said: “If I had seen this bolt on the floor, I would have picked it up, because some one might have stepped on it оr slipped over it; some one might have stumped and broke his thigh.”
The learned counsel for defendant mistake the rule of evidence in such cases. The burden is not on plaintiff to prove how the bolt happened to he on the aisle floor, nor how long it had been there. When plaintiff offered evidence tending to establish the facts we have stated, he made out a prima facie case of negligence, and a motion for nonsuit cannot properly be allowed. It is only in cases where no sufficient evidence of negligence is introduced, or where the evidence offered by plaintiff also rebuts any presumption that might otherwise arise from it, or establishes contributory negligence that such motion may be properly sustained, at close of plaintiff’s evidence. The plaintiff having made out a prima facie case of negligencе, it became incumbent upon defendant to offer evidence to rebut it and to exculpate itself from .the charge of negligence.
We are referring, of coursе, to injuries to passengers only, where the cause of action is based upon an alleged breach of a contract for safe carriage. This rule is based upon the contract of safe carriage of the passenger which the carrier has entered into, and is not, therefore, ex delicto. In the earlier English cases this contract was intеrpreted as a contract of insurance, but now it is treated only as a contract to exercise a high degree of care. Therefore, where the passenger is injured by an aparent act of negligence while in the care of the carrier, the latter must rebut such prima facie case by evidence tending to prove thаt it exercised such degree of care and that the injury was not the result of its negligence.
This is the well settled doctrine of the courts of this country.
A more recent case is
Ferne v. Penn. Ry. Co.,
This is the’accepted doctrine obtaining in the Federal as well as the State courts.”
in delivering the opinion of the Court in the case of
Gleeson v. R. R.,
*394
Tbis is, of course, followed by tbe lower Federal courts.
Wiley v. R. R.,
Of course, his Honor applied this to the present case, wherein a passenger is proven to have been. injured. As a proposition of law, we see nothing in it that this defendant can reasonably complain of, in view of the array of authorities we have cited.
No error.